PHYLLIS STRAYHORN, Complainant
SOCIAL DEVELOPMENT COMMISSION, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:
The second and third paragraphs of the administrative law judge's MEMORANDUM OPINION are deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 21, 2013
strayph_rmd . doc : 164 : 122.11 769
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In her petition for commission review the complainant argues that Wis. Stat. § 48.685 did not apply to her because she did not work as a "caregiver." The complainant contends that she was primarily a cook, who did not have unsupervised contact of any duration with children. She states that, therefore, the respondent had no legitimate reason to discharge her. The commission has considered the complainant's argument, but finds it unpersuasive. While it may be true that the complainant does not satisfy the statutory definition of "caregiver" -- and the description of the complainant's job duties contained in the stipulation of facts certainly raises doubts about that question -- the issue presented in this case is not whether the respondent was obligated to discharge the complainant under Wis. Stat. § 48.685, but whether the respondent's actions constituted a violation of the Wisconsin Fair Employment Act (hereinafter "Act"). The commission has previously held that, even where it appears that an employee was not actually a "caregiver" within the meaning of the Wisconsin Caregiver Law, (1) a statute similar to Wis. Stat. § 48.685, an employer's good faith belief that the employee was covered by the statute constituted a defense to an allegation that the employer intentionally discriminated against her based upon the fact that she had a criminal conviction record. Williams v. Medical College of Wisconsin, ERD Case No. CR200800850 (LIRC Oct. 10, 2011). In the instant case, the parties stipulated that the respondent believed the complainant was a caregiver and that it believed the law prohibited it from continuing to employ her. (2) Following Williams, that stipulation provides a defense to the complainant's allegation that she was discriminated against based upon her conviction record, in violation of the Act.
The complainant also argues that the respondent did not bother to determine whether her offense involved fraudulent activity. She maintains that the respondent did not gather any evidence about her conviction, but relied solely on the conviction record information supplied by the Wisconsin Crime Information Bureau (CIB), and points out that the information on the CIB report was incorrect in that it stated she was convicted of a violation of Wis. Stat. § 49.12(3), when in fact she was convicted of a violation of Wis. Stat. §§ 49.12(6) and (1). This argument also fails. The respondent acted reasonably in relying on the Wisconsin Department of Justice to perform a criminal background check on the complainant, and the commission is unpersuaded that the respondent had a duty to take any further investigatory action once it received the CIB report from the Department of Justice. Further, even if the respondent had discovered the error and had noted that the complainant was actually convicted of a violation of Wis. Stat. § § 49.12(6) and (1), the respondent would nonetheless have had reason to conclude that the complainant engaged in fraudulent activity. Wisconsin Stat. § 49.12(6) states that the conduct described in the statute "shall be considered a fraud" and Wis. Stat. § 49.12(1) specifically applies to individuals who make false representations in order to receive benefits. As such, both statutes can be said to involve "fraudulent activity." Moreover, as in the case of the argument that the complainant was not really a caregiver, the fact remains that the parties have stipulated that the respondent believed it was precluded from employing the complainant under Wis. Stat. § 48.685. Under the circumstances, the commission sees no basis to conclude that the complainant's discharge was in violation of the Act.
In her brief the complainant also argues that the administrative law judge erred in concluding that he had no jurisdiction to interpret Wis. Stat. § 48.685 and in deciding that a finding in the complainant's favor would set up a collision course between the Equal Rights Division (Division) and the Department of Children and Families (DCF). Here, the commission is in agreement with the complainant. The administrative law judge's memorandum opinion seems to be suggesting that the Division is preempted from deciding any case where an employer asserts it has made a decision based upon the provisions of Chapter 48. The administrative law judge has not provided any support for this theory, and the commission does not agree that the mere articulation of a defense under that statute means that the employer's actions cannot be found to be discriminatory. While the statute in question indicates that it applies "notwithstanding s. 111.335," it does not read the Fair Employment Act out of existence, and an employer who deliberately denies an employee an employment opportunity based upon a conviction record should not be permitted to rely on Chapter 48 to shield that decision from scrutiny.
The administrative law judge's concern that the Division might issue a ruling that would conflict with Chapter 48 is similarly unpersuasive. In the first place, it is hard to imagine a circumstance in which the conflict the administrative law judge fears would manifest itself. If the administrative law judge or commission were to find that the complainant is a caregiver who has engaged in the conduct prohibited by the statute, there would be no finding of discrimination and no order of reinstatement. If the administrative law judge or the commission were to find that the complainant was not a caregiver or, in the alternative, had not committed a serious crime, but ruled that the respondent genuinely and in good faith believed the statute applied to the complainant, there would again be no finding of discrimination and no order of reinstatement. Indeed, the only circumstance in which the administrative law judge or commission would order the respondent to rehire an employee it had terminated under Chapter 48 would be one in which it was found that the employee was not actually a caregiver, and/or had not actually committed a disqualifying crime, and that the respondent had not demonstrated a good faith reason to believe otherwise. It is difficult to imagine that DCF would nonetheless find the complainant to be a caregiver whom the respondent was foreclosed from hiring under those circumstances. Moreover, even assuming that situation could theoretically arise, it clearly has not arisen in this case, and the commission considers it unnecessary to address conflicts that might manifest themselves in future cases involving different parties and different facts. It has, therefore, deleted that portion of the administrative law judge's decision.
cc:
ATTORNEY SHEILA SULLIVAN
LEGAL ACTION OF WI
ATTORNEY JAMES H HALL JR
HALL BURCE & OLSON SC
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